Case 6:12-cv-00799-JRG Document 186-1 Filed 07/17/14 Page 1 of 9 PageID #: 5643
`Case 6:12—cv—00799—JRG Document 186-1 Filed 07/17/14 Page 1 of 9 Page|D #: 5643
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`EXHIBIT A
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`EXHIBIT A
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`Case 6:12-cv-00799-JRG Document 186-1 Filed 07/17/14 Page 2 of 9 PageID #: 5644
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`NO. (cid:9)
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`IN THE DISTRICT'URWkr: t ./vo,
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`DALLAS COUNTY, TEXAS - ury
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`THE CHANCELLOR, MASTERS and
`SCHOLARS OF THE UNIVERSITY OF (cid:9)
`§
`OXFORD and INVENSYS SYSTEMS, INC., §
`Plaintiffs,
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`v.
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`SHORE CHAN BRAGALONE
`DEPUMPO LLP,
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`Defendant. (cid:9)
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`JUDICIAL DISTRICT
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`PLAINTIFFS' ORIGINAL PETITION
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`TO THE HONORABLE JUDGE OF SAID COURT:
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`Plaintiffs The Chancellor, Masters and Scholars of the University of Oxford ("Oxford")
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`and Invensys Systems, Inc. ("Invensys"), file this petition against Defendant Shore Chan
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`Bragalone DePumpo LLP ("Shore Chan") and respectfully show the Court as follows:
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`I. DISCOVERY CONTROL PLAN
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`1.
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`Plaintiffs intend to conduct discovery under Level 2 of Texas Rule of Civil
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`Procedure 190.3.
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`II. PARTIES
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`2.
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`The Chancellor, Masters and Scholars of the University of Oxford is a university
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`whose offices are located in Wellington Square, Oxford, OX1 2JD in the United Kingdom.
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`3.
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`Invensys Systems, Inc. is a Massachusetts corporation with a principal place of
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`business at 10900 Equity Drive, Houston, Texas 77041.
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`4.
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`Shore Chan Bragalone DePumpo LLP is a Texas limited liability partnership with
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`its principal place of business at 901 Main St., Suite 3300, Dallas, Texas 75202. Shore Chan
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`may be served with process at that location.
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`Case 6:12-cv-00799-JRG Document 186-1 Filed 07/17/14 Page 3 of 9 PageID #: 5645
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`III. JURISDICTION AND VENUE
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`5.
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`This Court has jurisdiction over this action because the amount in controversy
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`exceeds the minimum jurisdictional amount.
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`6.
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`This Court has jurisdiction to render the declaratory relief Plaintiffs seek under
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`the Uniform Declaratory Judgments Act ("UDJA") found at Chapter 37 of the Texas Civil
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`Practice and Remedies Code.
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`7.
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`Venue is proper in Dallas County pursuant to section I5.002(a)(1) of the Texas
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`Civil Practice and Remedies Code because all or a substantial part of the alleged events or
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`omissions giving rise to the dispute occurred in Dallas County. Venue is also proper pursuant to
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`section 15.002(a)(3) of the Texas Civil Practice and Remedies Code because the principal office
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`of the Defendant, Shore Chan, in this state is in Dallas County. Further, venue is proper pursuant
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`to the arbitration provision in Paragraph 6 of the Attorney Retainer Agreement executed by
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`Oxford and Shore Chan on or about January 27, 2011, which states that the arbitration provision
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`shall be enforceable in state court in Dallas County,
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`IV. FACTS
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`8.
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`Oxford executed an Attorney Retainer Agreement with Shore Chan on January
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`27, 2011, retaining Shore Chan's legal services on a contingent fee basis in connection with a
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`potential patent infringement lawsuit against Emerson Electric Co. ("Emerson") and Micro
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`Motion, Inc. ("Micro Motion").
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`9.
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`The patents at issue are owned by Invensys and cover technology that was co-
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`developed by Oxford and Invensys pursuant to a sponsored research program.
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`10. Oxford signed the Attorney Retainer Agreement based on the expectation that
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`Shore Chan would also represent Invensys and that Oxford and Invensys would be co-plaintiffs
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`Case 6:12-cv-00799-JRG Document 186-1 Filed 07/17/14 Page 4 of 9 PageID #: 5646
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`in any patent infringement lawsuit against Emerson and Micro Motion. Invensys, however,
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`never entered into any retainer or contingent fee agreement with Shore Chan.
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`11. The Attorney Retainer Agreement provided that Shore Chan would receive
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`certain percentages of any recovery obtained by Oxford in the prospective patent infringement
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`lawsuit, depending upon the stage of the proceedings. It further provided that, upon recovery of
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`any proceeds in the patent litigation, Shore Chan would disburse the funds to Invensys, which
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`would then disburse funds to Oxford pursuant to a separately negotiated arrangement between
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`Invensys and Oxford.
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`12.
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`Paragraph 6 of the Attorney Retainer Agreement contains an arbitration provision,
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`which reads, in relevant part:
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`Any and all disputes, controversies, claims or demands arising out of or
`relating to this Agreement or any provision hereof, the providing of
`services by Attorney to Client, or in any way relating to the relationship
`between Attorney and Client, whether in contract, tort, or otherwise, at
`law or in equity, for damages or any other relief, shall be resolved by
`binding arbitration pursuant to the Federal Arbitration Act in accordance
`with the Commercial Arbitration Rules then in effect with the American
`Arbitration Association. Any such arbitration proceeding shall be
`conducted in Dallas County, Texas. This arbitration provision shall be
`enforceable in either federal or state court in Dallas County, Texas
`pursuant to the substantive federal laws established by the Federal
`Arbitration Act.
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`13. On October 19, 2011, Oxford wrote Shore Chan advising that it considered the
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`executed contingent fee agreement void, and was formally notifying Shore Chan that its services
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`were not needed and any retention that had subsisted between the parties was terminated.
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`Invensys retained other counsel and proceeded to file a patent infringement lawsuit against
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`Emerson and Micro Motion ("the Emerson Case").
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`14.
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`Since at least October 31, 2012, Shore Chan has made several threats to institute
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`legal action against Invensys and its counsel, including repeated threats to intervene in the
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`Case 6:12-cv-00799-JRG Document 186-1 Filed 07/17/14 Page 5 of 9 PageID #: 5647
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`Emerson Case. Shore Chan has also made repeated allegations of tortious interference against
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`Invensys.
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`15.
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`Further, Shore Chan has made several demands, as recently as February 4, 2013,
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`to Invensys for payment of 3.75% of any recovery in the Emerson case, despite the fact that
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`Shore Chan and Invensys never entered into any retainer or contingent fee agreement.
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`16.
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`Shore Chan has also demanded that Invensys pay $547,000 in fees and expenses
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`for alleged legal services that Shore Chan provided, again despite the fact that Invensys never
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`entered into any retainer or fee agreement with Shore Chan. Shore Chan has not provided any
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`accounting for what comprises the $547,000 in fees and expenses.
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`17. Based on the broad-form arbitration clause in Paragraph 6 of the Attorney
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`Retainer Agreement, any "disputes, controversies, claims or demands" arising out of the
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`Attorney Retainer Agreement between Oxford and Shore Chan are clearly subject to arbitration.
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`Oxford has offered to engage in non-binding mediation with Shore Chan and, if unsuccessful, to
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`proceed to arbitration under Paragraph 6, but Shore Chan has rejected that offer.
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`18.
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`Instead, Shore Chan has attempted to make an end-run around the arbitration
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`provision by making multiple demands of Invensys, a non-party to the Attorney Retainer
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`Agreement, to pay a 3.75% contingency fee on the Emerson case, even though Invensys and
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`Shore Chan have no contingency fee agreement.
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`19.
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`In response to Shore Chan's repeated threats of legal action and demands for
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`payment from Invensys, Oxford and Invensys bring this action under the UDJA to resolve the
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`parties' dispute about the scope and applicability of the arbitration provision in the Attorney
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`Retainer Agreement and about whether Invensys owes any payment to Shore Chan for alleged
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`legal services provided.
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`Case 6:12-cv-00799-JRG Document 186-1 Filed 07/17/14 Page 6 of 9 PageID #: 5648
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`V. COUNT I — DECLARATORY JUDGMENT
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`20. Oxford and Invensys incorporate the paragraphs set forth above as if stated
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`herein.
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`21.
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`The UDJA permits this Court to render declaratory relief "to declare rights, status,
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`and other legal relations whether or not further relief is or could be claimed." TEX. Civ. PRAC. &
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`REM. CODE ANN. § 37.003. The UDJA further provides that "[a] person interested under a deed,
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`will, written contract, or other writings constituting a contract or whose rights, status, or other
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`legal relations are affected by a statute, municipal ordinance, contract, or franchise may have
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`determined any question of construction or validity arising under the instrument, statute,
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`ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations
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`thereunder." Id, § 37.004.
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`22. As described above, Oxford is interested under the Attorney Retainer Agreement
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`with Shore Chan and has rights that are affected by that contract. Accordingly, declaratory relief
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`is available here.
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`23. The UDJA further permits a Court to provide declaratory relief "in any
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`proceeding in which declaratory relief is sought and a judgment or decree will terminate the
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`controversy or remove an uncertainty."
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`Id at § 37.003(c). The determination of whether
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`Invensys owes any fees or expenses to Shore Chan for alleged legal services provided in the
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`absence of a written contract would "terminate the controversy or remove an uncertainty"
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`between Invensys and Shore Chan. Accordingly, declaratory relief is available.
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`24. Oxford and Invensys seek at least the following declarations from the Court:
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`(a) (cid:9)
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`The scope of arbitrable disputes between Oxford and Shore Chan,
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`including that any disputes or claims over fees owed by Oxford under the
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`Case 6:12-cv-00799-JRG Document 186-1 Filed 07/17/14 Page 7 of 9 PageID #: 5649
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`Attorney Retainer Agreement are subject to the arbitration provision and
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`must be brought in arbitration in Dallas County, Texas;
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`(b)
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`That Invensys does not owe any contingent fee to Shore Chan based on
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`any recovery in the Emerson Case;
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`(c)
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`That Invensys does not owe Shore Chan any fees or expenses for legal
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`services provided, or in the alternative, that Shore Chan must provide an
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`accounting of any fees and expenses to Invensys before any such
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`determination can be made.
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`VI. ATTORNEY'S FEES
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`25. Oxford and Invensys are entitled to recover reasonable and necessary attorney's
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`fees under Texas Civil Practice and Remedies Code Section 37.009.
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`VII, CONDITIONS PRECEDENT
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`26. All conditions precedent to Oxford's and Invensys's claims for relief have been
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`performed or have occurred.
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`VIII. JURY DEMAND
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`27. Oxford and Invensys demand a trial by jury on all issues so triable and tenders the
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`appropriate fee with this petition.
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`IX. REQUEST FOR DISCLOSURE
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`28.
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`Pursuant to Texas Rule of Civil Procedure 194, Oxford and Invensys request that
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`Shore Chan disclose, within fifty days of the service of this request, the information and material
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`described in Rule 194.2.
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`Case 6:12-cv-00799-JRG Document 186-1 Filed 07/17/14 Page 8 of 9 PageID #: 5650
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`X. PRAYER FOR RELIEF
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`WHEREFORE, PREMISES CONSIDERED, Plaintiffs Oxford and Invensys respectfully
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`request that the Court issue citation for Shore Chan to appear and answer herein, and that the
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`Court:
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`A. (cid:9)
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`Enter a declaration:
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`a.
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`Of the scope of arbitrable disputes between Oxford and Shore
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`Chan, including that any disputes or claims over fees owed by Oxford under the
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`Attorney Retainer Agreement are subject to the arbitration provision and must be
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`brought in arbitration in Dallas County, Texas;
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`b.
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`That Invensys does not owe any contingent fee to Shore Chan
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`based on any recovery in the Emerson Case; and
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`c.
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`That Invensys does not owe Shore Chan any fees or expenses for
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`legal services provided, or in the alternative, that Shore Chan must provide an
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`accounting of any fees and expenses to Invensys before any such determination
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`can be made.
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`B. (cid:9)
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`Enter an award of reasonable attorneys' fees, expenses and costs incurred
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`by Plaintiffs in this action; and
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`C. (cid:9)
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`Award all other and further relief, at law or in equity, to which Plaintiffs
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`may be justly entitled.
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`Case 6:12-cv-00799-JRG Document 186-1 Filed 07/17/14 Page 9 of 9 PageID #: 5651
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`Dated: February 8, 2013
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`Respectfully submitted,
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`DLA PIPER LLP
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`By: /s/ Claudia Wilson Frost
`Claudia Wilson Frost
`State Bar No. 21671300
`DLA PIPER LLP (US)
`1000 Louisiana, Suite 2800
`Houston, Texas 77002
`Telephone: 713.425.8400
`Facsimile: 713.425.8401
`Claudia.Frost@dlapiper.com
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`Kathy J. Owen
`State Bar No. 15369300
`DLA PIPER LLP (US)
`1717 Main Street, Suite 4600
`Dallas, Texas 75201-4629
`Telephone: 214.743.4508
`Facsimile: 972.813.6270
`Kathy.Owen@dlapiper.com
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`ATTORNEYS FOR PLAINTIFFS THE
`CHANCELLOR, MASTERS AND
`SCHOLARS OF THE UNIVERSITY OF
`OXFORD and INVENSYS SYSTEMS,
`INC.
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`8